26 F. 40 -

26 F1d 40

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Case Text

40

FEDERAL REPORTER.

be taken ont by the heating, but on testing we found that they were im· proved by the heating, although they had not been dipped in the oil. This led ns to experiment, and we heated a lot of soft springs until they were blue, and let them cool off without any hath, and found that they were improved. After this we tempered many of our springs in this way. Sometimes, when the wire was very soft, we put them in the oil mixtures, but generally we left them to cool in the air. This we practiced frequently before the year 1870. I think we began it in 1868, and I am sure it was before 1870. We have continued to practice it ever since on springs reqUiring tempering. "

It does not appear that such testimony of the prior discovery, knowledge, and use of the invention was brought to the notice of either of the learned judges who granted the injunction in the other cases. I do not say that it is conclusive. A cross-examination may throw a different light on the matter. But it is certainly of a character to suggest grave doubts whether Cary was in fact the original and first discoverer of the beneficial results which followed the application of spring-temper heat to springs, whose value so largely depends upon their elasticity and strength. I do not think that I should have seen my way clear to allow the preliminary injunctions in the present case if it had been presented on the original motion; and the rule is a good one, that the evidence which would prevent the issuing of an injunction ought to be regarded as sufficient to dissolve one already Sr1!'nted. The injunction must be dissolved until the final hearing.

THE PLYMOUTH ROCK. THE GEORGE H. DENTZ. PENNSYLVANIA R. Co. v. THE PLYMOUTH ROOK and THE GEORGE H. DENTZ.
(District (Jourt. S. D. New York. November 12,1885.)
1.

COLI,ISION-HELL GATE-INSPECTORS' RULES.

The large steamer P. R.. having the steam-tug G. II. D. and a tow ahead of her and on her starboard side. exchanged signals of two whistles, by whioh it was understood that the P. R. should pass the tug in going through Hell Gate. Held, that this being a violation of the inspectors' rule 9, which requiroo the P. R. to drop astern in that situation, both vessels were culpable for the violation of the rule; and, the violation not appearing to be immaterial, both were held in fault on that ground for the collision that ensued & little above Flood rock.

$.

SAME-STOPPING AND BACKING.

Held, further, that the tug was also in fault for in the miullle 01' to the left of the middle of the stream after such signals, instead of k"uring on the right-hand side, as she mighthave done, to give the P. It lliOl'LJ room;

THE PLYMOUTH ROCK.

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and that the P. R. was also in further fault for not having stopped and backed in time, as she might have done upon observing the course that the tug was holding.

In Admiralty. Wilcox, Adams et Macklin, for libelant. William Hildreth Field, for the Plymouth Rock. Edwin G. Davis, for the George H. Dentz. BROWN, J. On the sixth of September, 1884, as the .Plymouth Rock was near the npper end of Blackwell's island, in the westerly channel, bound through Hell Gate, in the flood-tide, she observed the steam-tug George H. Dentz, with three boats along-side, near the toria ferry, on the Long Island shore, also apparently bound through Hell Gate. She at once gave the Dentz a signal of two whistles, which were immediatelv answered with a similar whistle. Both nilots, as appears from th-e evidence, understood this signal to mean that the Plymouth Rock should pass the Dentz on the latter's port side. In attempting to do so the starboard side of the Plymouth Rock came in contact with the libelant's boat, which was on the port side of the Dentz, and did her some damage, for which this libel was filed. The weight of evidence shows that the place of the collision was in the easterly Hell Gate passage, not far from the Gridiron, just above Flood rock. and between that and Hallett's point. On behalf of the Plymouth Rock, it is claimed that the steamer ran as near the Gridiron as safe, namely, within 20 or 25 feet of it; while the witnesses on the part of the tug testify that the tug, at the time of the collision, was In mid-channel, some 350 feet from the Gridiron. 1. Both vessels must be held in fault for this collision. No place in the harbor requires so careful navigation as the channels through Hell Gate. Rule 8 of the board of supervising inspectors, in effect, forbids steamers attempting to pass each other in going through Hell Gate, in either direction. It provides that "when they shall have arrived abreast of the north end of Blackwell's island, the steamer on the right or starboard hand of the other shall have the right of way, and the steamer on the left or port side of the other shall check her way and drop astern." The tide in that vicinity runs about six miles an hour; the Plymouth Rock was, therefore, making by land about 16 miles per hour, and the Dentz about 9 miles. I find, therefore, that when the whistles were exchanged, the Dentz was not far from Astoria ferry, as located by the Plymouth Rock. She therefore had the right of way, and the Plymouth Rock, by the inspectors' rule, was bound to keep astern until the Dentz had passed through this dangerous passage. As the signal exchanged between the two was understood by both, it amounted to an assent on the part of both to depart from the inspectors' rule. As this rule had the force of a statute, (The B. B. Saunders, 19 Fed. Rep. 118,) it was binding upon both, and each must be held in fault for the collision which ensued through violating it; unless there were other faults of the one or the

42

FEDERAL REPORTER.

other, so much more important and controlling as to make the latter the proper sole cause of the collision, and the violation of the rule, the remote and immaterial cause only. The E. A. Packer, 20 Fed. Rep. 327, 329; The Maryland, 19 Fed. Rep. 551, 556. In this case there were doubtless other faults on both sides, which I shall presently notice. But the evidence does not show with such certainty the precise place of the collision in reference to the turn of the Plymouth Rock to the eastward, as warrants me in holding that the attempt to pass in the narrow and tortuous channel at Hell Gate was immaterial. The large steamer Pilgrim was following up a little astern of the Plymouth Rock. Shortly before the collision she gave the Dentz a signal of one whistle, meaning that she would pass the Dentz on the latter's starboard side, to which the Dentz also assented. This was an additional violation of the same rule of the supervising inspectors, that increased threefold the dangers of the passage. The Pilgrim had been in sight, and the Dentz may possibly have supposed she was bound to leave space for her; and if the Dentz intended to go in mid-channel, so as to leave room for one steamer on each side of her, there was great liability to error of judgment in this attempt. The duties of these several steamers must, however. be considered in reference to the inspector's rules, as much as to the rules. When the Dentz had agreed that the Plymouth Rock mIght pass upon her port hand, it became the duty of the Dentz to give ample space by going upon the starboard side of the channol, which was unobstructed, and by keeping on that side all the way around the bend to the right a little above Flood rock, under a port wheel, so as to give the Plymouth Rock, with her great length, room to swing without danger. Instead of doing so, the Dentz, even according to her own testimony, was no further to the right than mid-channel, and was kept heading directly towards the Hog's Back on the northern shore. As she makes the place of collision one-third of the distance towards the Hog's Back, it is not impossible that the collision arose after the Plymouth Rock commenced her swing to starboard. Considering the testimony of the libelant, who is mainly in the situation of an impartial witness, it is probable that the collision was not as near to the Gridiron as the witnessel:l for the Plymouth Rock state. But in view of the narrow channel, the sharp turu of near ly a right angle just beyond Flood rock, and the great length of such boats as the Plymouth Rock, I must hold it a culpable fault in the Dentz-First, to have assented to any departure from the inspectors' rule; and, second, having done so, not to have kept upon the starboard side of the channel-way, directly around Hallett's point, so as to give undoubted room for the Plymouth Rock to make her necessary turn. 2. The Plymouth Rock is also in fault, both for deliberately violating the inspectors' rule, and also for not stopping and backing in

ETHERIDGE fl. CITY OF PHIJ,ADELPHIA.

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time to avoid the collision, when the Dentz was seen approaching to the westerly half of the channel around Hallett's point. Her pilot claims' that when this was observed he could not stop, on account of the currents of that locality. I cannot accept this statement as an excuse. The Pilgrim, just astern of him, was able to stop, and did so without difficulty, and passed the Plymouth Rock some five min-' utes afterwards. The flood tide, since the removal of the shoals fl'om Hallett's point, runs true between that point and Flood rock. The Dentz, according to the pilot's statement, was seen hauling to the westward after passing Astoria ferry; and the Plymouth Rock had sufficient notice of her COUfse to have kept entire control of herself, or, if need be, to have kept astern of the Dentz, as required by the inspectors' rule, until all danger was past. Both vessels must therefore be held in fault, and So decree for the libelant be rendered against both, with costs.

The schooner Elm City had enga.ged a tug to tow her from Pine street wharf, on the Schuylkill, to Port Richmond. The tug made fast to the schooner and signaled those in charge of defendant's to open the draw to let them in, The draw was opened in response to the SIgnal. The vessels proceeded on their way. There was a high wind blowing at the time. Those In charge of the bridge, owing to its being out of order, were unable to fasten the draw securely, It got beyond their control, swung round, struck and damaged the schooner. Held, that the admiralty court had jurisdiction, and that the municipal corporation was responsible for the negligence.

2.

SAME-DEFECTIVE BRIDGE-NEGLIGENCE-NoTICE·.

When the draw of a bridge is turned to remove obstructions to navigation, it must be securely fa.stened. Fa.ilure to do this is negligence.

In Admiralty. The cause came up to be heard on libel, answer, and proofs. Driver et Coulston, for libelant. McMichael et Warwick, for respondent. BUTLER, J. The question of jurisdiction is settled by the following cases: The Oeres, 7 Wkly. NotesUas. 576; ThePlymouth, 3 Wall. 35; The Rock Island Bridge, 6 Wall. 215; Atlee v. Packet 00., 21 Wall. 390; Railroad 00. v. Steam-boat 00., 23 How. 219; Leathers v. Blessing. 105 U. S. 626; The Maud Webster, 8 Ben. 551. It is quite clear that the accident resulted from defect in the bridge. When the draw is turned, to remove obstruction to navigation, it is intended to be secured in place by an iron bolt and socket. This arlReported by C. B. Taylor, Esq., of the Philadelphia bar.